FEB2015ACCJARTICLE

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FEBRUARY 2015 • ACCJ JOURNAL

NEW RULES ON CHILD ABDUCTION
Tokyo handles first cases under newly ratified Hague convention

It took time and the application of a degree of pressure—both international and domestic—for Japan’s Diet to approve the Hague Convention on the Civil Aspects of International Child Abduction, which finally went into effect on April 1, 2014. So far, diplomats, lawyers, and children’s rights activists have broadly applauded the efforts of the Japanese authorities to accede to the spirit of the agreement, pointing out a number of cases in which the pact has been enforced.

They warn, however, that the legislation has been in place for less than a year, and that Japan’s courts have yet to become deeply involved in cases that, all sides agree, are complicated and replete with emotional aspects.
“It’s too early to tell yet,” Steven Maloney, consul general at the US Embassy in Tokyo, told the ACCJ Journal.
“The Japanese government has done a lot of things very well; they have enacted the legislation, set up an office in the foreign ministry, as well as assembled judges, social workers, and lawyers with diverse skills and the ability to do the job properly, and we’re very happy with that. “But how the courts react remains to be seen,” he added.

Before last April, Japan was the only G-8 nation not to have ratified this Hague convention, which generally stipulates that a child should be returned to his or her country of habitual residence when they have been taken out of that country by a parent and without the consent of the other parent.

With ever more international marriages—estimated at 40,000 a year in Japan—ending in separation or divorce, pressure from around the world has been building for Tokyo to enact relevant legislation.

In recent years, embassies in Tokyo were handling around 400 cases annually in which the Japanese parent had violated the terms of the convention. But previously, international authorities had been powerless to act once the child was in Japan.

At present, the US Embassy in Tokyo is dealing with close to 100 cases. “Each [case] is very complicated, and many involve more than one child,” Maloney said. Thirty-one applications for access to US citizen children and two cases for return are currently being handled by the Japanese authorities, and Maloney believes the Japanese authorities deserve credit for that.

“Clearly the government here is treating the issue very seriously, they are acting professionally, they are carrying out training, and they are not stonewalling, but we will know a great deal more in three months from now,” he added.

Jury still out

Concern revolves around an article in the convention that identifies “grave risk” to the physical well-being of the child at the center of a dispute as being grounds for a judge to refuse to sanction the child being returned to his or her country of habitual residence. Critics say that Japanese parents who have abducted a child are aware of this loophole and that they are likely to use it—whether or not there was any physical abuse in the past—to keep the child in Japan.

“If the article is interpreted in Japan as it is interpreted elsewhere, then we do not believe there are any loopholes,” Maloney said.

Taeko Mizuno Tada, a Tokyo-based lawyer with the firm Nagahama, Mizuno & Inoue, has handled international family cases for many years. She says the law was changed largely as a result of pressure from foreign governments.
“I believe the Japanese government agreed to ratify the convention because of overseas pressure, especially from the US government,” Mizuno said. “Over the past 20 years, amendments to the Civil Code related to family matters have been very slow and controversial in Japan.

“But as some children have been returned to Japan from other countries since April 1, we now understand that the Hague convention can be beneficial to Japanese and other residents of Japan as well,” she added.
Without external encouragement, Mizuno believes, it could have taken another 30 years for Japan to sign the Hague pact. But she agrees that the authorities here are taking their new obligations seriously.

“The Japanese foreign ministry has hired many good people to handle Hague convention issues,” she said. “And Japanese courts and the bar association have had a lot of education and training courses for Hague cases.”

Parents still suffering

However, foreign nationals who have been separated from their children for many years say Japan’s failure to ratify the convention earlier condemned them to years without their children, and that they still may never have the right to see their kids again.

“The benefits of Japan signing the convention only apply to cases where the children are under 16 years of age,” said Walter Benda, of Virginia, who has seen his two daughters just once in 20 years.

“Furthermore the Hague convention is not retroactive, so cases such as mine, which occurred in the past, and in which the children are already 16 or older, are not covered under any of the provisions of this treaty,” Benda added. He is joint founder of the Japan chapter of the US-based Children’s Rights Council.

Benda’s wife disappeared with the girls after seeing him off to work one morning from their home in Chiba Prefecture, and she rebuffed all his efforts to make contact with them. As soon as he did find them again, they vanished once more. The only time he has seen them was for a few moments on a street in a Japanese town in 1998, after a private investigator managed to track down the girls and their mother.

The problem was overlooked for many years simply because it was not in the public eye, and there was “a cultural bias” in Japan that supported Japanese parents who had abducted children, Benda said.

“However, as the number of cases kept growing at an ever increasing rate, with parents becoming more and more organized and being able to use the Internet to leverage this issue, it started to catch the attention of leaders in the US, Japan, and other countries,” he explained. “In addition to media coverage, various documentaries, such as From the Shadows, further exposed the problem.

“Rallies and other events held by parents in the US, Japan, and other countries also raised public awareness, as did the passage of various congressional resolutions in the US.

“All of this built up to the point where it started to become an international diplomatic issue that Japanese leaders had to deal with when meeting with their foreign counterparts,” he said. “All of these efforts took about 20 years of hard work and sacrifices by parents who had their children internationally abducted.”

And while Benda concedes that little can be done in his case, he agrees that Japan signing the convention means that other foreign parents may not have to go through what he has endured for two decades.

“We have seen a marked decline in the number of parents contacting our organization for help because of their children being internationally abducted,” he said. “I definitely believe that Japan’s signing of the Hague convention has had a deterrent effect on the number of parental abductions of children of couples with one Japanese spouse and one non-Japanese spouse.”

US nationals seeking advice may contact tokyoacs@state.gov, call 03 3224 5000, or view the State Department’s website at http://travel.state.gov/content/ childabduction/english/about.html.

http://accjjournal.com/left-behind/

 

LEFT BEHIND

PARENTS FIGHT FOR JUSTICE IN JAPAN

BY MIKE DEJONG
Apr 1, 2012 | 5 Comments | 251 views

After decades of reluctance, Japan is set to join the 1980 Hague Convention on the Civil Aspects of International Child Abduction. This international treaty, signed by more than 80 countries, is designed to prevent children from being taken from their home countries. While experts say joining the Hague Convention is a positive first step, critics argue that the real issue in Japan is not child abduction – but a lack of enforceable joint-custody laws to protect the rights of parents and children following divorce. This month, we examine the issues surrounding child custody and show why divorcing one’s spouse often means losing one’s children in Japan.

ILLUSTRATION BY JOHN SHELLEY
It was mid-October 2009,when Masako Akeo went to watch a choir concert at her son’s school. Akeo hadn’t seen little Kazuya in some time and was excited to hear him sing and possibly even have a word with him. After waiting patiently for the performance to end – and the applause to die down – Akeo approached her only child. 

“Kazuya!” she called out.

The little boy turned and there was a moment of recognition. But Akeo never got to follow up. To her surprise, the principal marched over and grabbed her arm. “Why did you come here?” he barked. “Why did you interrupt the concert?”

Akeo was pulled into a separate room and interrogated. She was ordered to leave the school and not talk to her son again.

“That choir concert was in the morning,” she says. “I waited outside the gate until six o’clock. But he did not come out.”

Akeo was treated like a criminal for wanting to see her son. But she was not a criminal. In fact, she was a victim of child abduction and parental alienation. And she remains so to this day.

In late summer 2006, Kazuya was spirited away from the family home by Akeo’s Japanese ex-husband. Akeo tried everything to get her son back including hiring private investigators and going to court more than 60 times. Nothing worked. Despite being a desperate mother, she has only seen the boy three times since his abduction.

“I met him two times in the Family Court,” she says. “One time was one hour – the other time was 45 minutes.

“The last mediation, my ex-husband made an agreement. I could meet my son every two months. But then final mediation, he gave the court my son’s letter. The letter said: ‘Oh, I have to study to enter high school. It is quite difficult for me now (to meet you).’

“Always, I had hope. But that day finished everything. I can’t do anything about my son.”

Takaji Takeuchi can sympathize with Akeo’s desperation. On a warm spring night in March of 2011, he tried to talk to his son who had also been taken away by his Japanese ex-spouse several years before. Japan had been hit by the horrible 3/11 tragedy and Takeuchi, like many others, was concerned about his family. He found his son at home with his ex-wife.

TAKAJI TAKEUCHI HAS ONLY SEEN HIS SON KOUSUKE FIVE TIMES IN FIVE YEARS. (PHOTO BY MIKE DEJONG)

“They came out together,” Takeuchi says. “In front of my ex-wife, my son was standing. “I said ‘Are you okay?’ He said ‘Yeah, I’m okay. But why (did) you come here?’ I don’t have a father. I don’t need a father.” 

Both Takeuchi and Akeo’s children have been turned against them. It’s a common occurance for children separated from their mothers or fathers for lengthy periods of time. And it’s something that causes great pain on all sides.

“Every year, (at) New Year I say this year will be better,” Akeo says. “But you know, every year is getting worse. Still, I must keep going and keep doing something.”

Heartbreaking But Not Uncommon
These two cases are heartbreaking but not uncommon in Japan. In fact, there may be thousands of parents like them, who have lost contact with their children following a marital breakdown.

The reason is simple: there are no provisions for joint custody in Japan. In fact, under the country’s Meiji Era Civil Code, child custody is awarded to only one parent following a divorce, with the other parent is generally shut out. With no enforceable visitation rules, non-custodial parents generally lose access to their own children.

“Japanese Family Law is a misnomer in that there isn’t such a thing,” says Colin P. A. Jones, professor at Doshisha Law School in Kyoto. “There is not a statute that is called Family Law.

“There have never been a lot of substantive rules clearly laid out somewhere in a statute, which say parents have to do this for their children… or after divorce this is what’s supposed to happen.”

Jones says the parent-child relationship in Japan is defined in terms of a marital relationship, so essentially, divorcing a spouse also means divorcing one’s children. In the rare cases where visitation is granted, Japanese courts usually limit non-custodial parental time to a few hours per month. The custodial parent retains the right to cancel visitation at any time without penalty. This policy differs greatly from Western countries where the rights of parents are maintained and enforced – even after divorce.

“For a number of historical reasons, Japan has never really developed the notion that there are Constitutional rights associated with the parent-child relationship,” says Jones. “That is why child abduction – as we would call it – within Japan has been a problem as long, if not longer, than the international abduction cases have been.”

MASAKO AKEO HAS ONLY SEEN HER SON KAZUYA THREE TIMES IN SIX YEARS.
After a divorce in Japan, a non-custodial parent can no longer decide on their child’s health, education, living arrangements and schooling – even what name the child will carry into the future. It is common for custodial parents to move away from the other parent without notifying them of their child’s whereabouts. 

Critics say it’s a system that promotes and legitimizes child abduction and alienation.

Best Interests of the Child? 
In denying or severely limiting visitation, Japanese courts often reason that children “need protection” from the “trauma of divorce.” For example, in 2003, a desperate mother looking to visit her son was told by an Osaka High Court that “the child is satisfied with his current established lifestyle” with his father and new step-mother. The court denied the mother’s visitation request stating that “exposing the child to different lifestyles and methods of discipline can have adverse effects on the feelings and emotional stability of the child.”

This opinion flies in the face of research by child psychologists, psychiatrists and child welfare experts worldwide who argue that, despite the conflicts inherent with divorce, children need contact with both parents to grow up as healthy, well-adjusted adults.

“Empirical and longitudinal studies show that maintaining contact with non-custodial parents is beneficial for children’s well-being,” says clinical psychologist Kazuyo Tanase, a professor at Kobe Shinwa Women’s University.

In an interview with NHK, Dr. Tanase said she believes the current visitation system in Japan does not serve children or parents well. “It should be changed. Parents with no custody should be able to spend substantial amounts of time with their children like weekends and long vacations with overnights, not just several hours a month. Secondly, couples shouldn’t be allowed to separate or get divorced without a parenting plan in place. Finally, couples should be able to choose between sole custody and joint custody.”

HAPPIER DAYS FOR MASAKO AKEO AND HER SON KAZUYA.

In recent months, diplomatic officials from the US, Canada and Europe have lobbied Japan to implement a joint custody system. Senior members of the Obama Administration including Secretary of State Hillary Clinton have also pushed Japan to join the 1980 Hague Convention – an international agreement that protects children from abduction. Japan is the only G8 country yet to sign the accord. The Japanese government has pledged to join the Hague Convention this year and the Justice Ministry has already released legislative proposals due to be submitted to the Diet this spring. However, critics say the proposals include so many conditions that the law will be virtually unenforceable.

“It’s pretty depressing,” says Jones, after reviewing the proposals. “It seems pretty clear that Japan is going to implement the Hague based on a number of assumptions that conflict with the assumptions of the Hague Convention.

“The implementation regime (in Japan) is basically going to assume that the taking parent has a good reason – they’re going to protect the taking parent until the left-behind parent proves otherwise.
“I don’t see it really getting anywhere – really making any changes.”

Black Hole For Child Abduction
Japan is a signatory of Article 10.2, the United Nations Convention on the Human Rights of the Child, which reads: “A child whose parents reside in different states shall have the right to maintain on a regular basis, personal relations and direct contacts with both parents.”

Yet personal relations and direct contact with both parents often does not happen in Japan. And, with its lack of respect for international court rulings and a decades-long reluctance to join the Hague Convention, some critics call Japan a “black hole” for child abduction.

In fact, the US State Department warns that “Abductions to Japan represent one of the largest portfolios in the Office of Children’s Issues and are among the most difficult to resolve. To date, the Office of Children’s Issues does not have a record of any cases resolved through a favorable Japanese court order or through the assistance of the Japanese government.”

Two high profile cases recently highlighted the need for Japan to get serious about child abduction. Last December, Wisconsin doctor Moises Garcia saw his nine-year old daughter returned after a four-year fight. The child had been abducted to Japan by her mother, who ignored a US court order granting the father custody. The child was returned as part of a plea bargain agreement when the mother was arrested in Hawaii on child abduction charges. In 2009, the Japanese ex-wife of American Christopher Savoie also ignored a US court order and took the couple’s children away. Savoie traveled to Japan to try and get the children back but was himself arrested on abduction charges. The charges were later dropped but Savoie was forced to leave Japan without his children.

In both of these cases, Japan failed to recognize US court decisions and experts say this highlights not only problems with Japanese law but also the country’s disregard for international court rulings.

Left Behind Parents
An organization known as Left Behind Parents Japan (LBPJ) has been campaigning for Japan to join the Hague Convention and to implement an enforceable visitation system. The group – which brings together foreign and Japanese parents who have lost access to their children – has taken its fight to senior levels of the Japanese government, including meetings with a former Japanese Justice Minister.

“Meeting with (former Justice Minister) Eda Satsuki was extremely important because he’s been a lawyer for over 40 years,” says LBPJ spokesperson Bruce Gherbetti. “He was a Family Court Judge early in his career, so he understands the issues at play.

“And I believe that he inherently believes that the solution is for Japan to sign the Hague Convention.

“Ultimately, Article 818-819 needs to be changed. That’s the (article of the) Civil Code that speaks to sole parental authority.

“Kyodo shinken is the answer,” says Gherbetti. “Kyodo shinken or joint custody.”

Not Only A “Foreign” Matter
From the attention given to high profile international abduction cases, one might assume the child abduction issue is a “foreign” matter in Japan. However, it is not. Japan’s divorce rate is now more than double what it was in the early 1970s and statistics show that nearly half of all marriages end in divorce (nearly 40 percent in 2010) – which means there could be thousands of permanently separated Japanese parents and children. At least 20 percent of the cases also involve left-behind mothers.

“If you’re a public school teacher, you’re looking at a class where one-third of the children probably have experienced a parental divorce,” says Jones. “Just nobody talks about it and the law really has not addressed what should happen to children after divorce. What is in their best interests after divorce.”

Despite all of the publicity surrounding the issue, it does not appear that help is coming soon from the Japanese government. In an interview with the Japan Times on February 1, 2012, Japan’s new Justice Minister Toshio Ogawa had this to say about modernizing the Civil Code: “If we allow dual parental rights, it will be difficult to decide which parent the children live with and to make other decisions. I believe a major complaint that people seeking dual parental rights have is that they don’t get to see their children enough. That can be largely solved by ensuring visitation rights.”

“The problem is that visitation rights are not enforceable under the current system,” says Gherbetti. “You could talk about visitation rights all you want, but if one parent still has veto rights over the other, then visitation provisions are essentially meaningless.

“To continue to disallow dual parental rights is a human rights violation, plain and simple,” says Gherbetti.

LBPJ member Dennis Gunn adds, “If one side has tyrannical power over the relationship with your child, then sooner or later – and usually sooner – that is going to be abused.

“They have devised a system here that is guaranteed to cause the parents… and the children to suffer.”

 

PHOTO BY LOUISE ROUSE

Suffering is what Masako Akeo continues to do. Although she devotes much of her time and attention to helping other left-behind parents, she endures on-going nightmares about her son’s whereabouts. She doesn’t know where he is, what he is doing or whether or not he is safe. His childhood was cruelly stripped from her by a vindictive ex-husband and a system that supports child abduction. 

“I’m kind of an activist,” she says. “Maybe so my son can see TV or magazine or newspaper.

Okay, Mommy’s doing this for me. That’s why I’m doing this – for my son.”